De facto death penalty moratorium may end

Bills to reform capital punishment system make progress in legislature

Following a 4-3 decision by the N.C. Supreme Court, North Carolina is one step closer to ending a de facto moratorium on the death penalty, and supporters of capital punishment are clamoring for the proverbial guillotine to drop. But before the state can execute its 163 inmates on death row, it must first confront several legal and legislative challenges to the practice.

House Minority Leader Paul Stam, R-Wake, announced last week that the "last significant hurdle has now been resolved" to resume executions and urged lawmakers to vote down any further death-penalty reforms.

"We really don't need any further legislative action," he said in an interview. "We've had the death penalty in our laws for the last 30 years, under what the Supreme Court says is constitutional procedures."

Pending reform bills

There are several bills moving through the N.C. General Assembly that would reform sentencing and post-conviction appeal procedures for the death penalty, which is on temporary hold in N.C. These are:

Racial Justice Act (HB 472/ SB 461): Would prevent the execution of defendants who can prove that race was a significant factor in decisions to seek or impose the death penalty in their district, county or state at the time of their trials. Status: House version headed for a floor vote; Senate version under consideration by Senate Judiciary I committee.

Capital Procedure/ Severe Mental Disability (HB 137/ SB 309): Would prevent the execution of defendants who can prove they suffered from a serious mental disability at the time the crime was committed. Status: House version scheduled to be taken up by House Judiciary I Committee.

Proportionality Review (HB 123): In determining whether a death sentence was disproportionate, the N.C. Supreme Court would be required to consider not only capital cases that resulted in the death penalty but also factually similar cases that resulted in life imprisonment. Would apply only to capital cases not yet decided by the Supreme Court on direct appeal. Status: Referred to House Judiciary II Committee.

Limited Witness Immunity (HB 937): Would grant the N.C. Innocence Inquiry Commission subpoena power in reviewing post-conviction cases, and protect witnesses from prosecution from perjury if they acknowledge they initially lied in court. Status: Passed House, referred to Senate Judiciary I Committee.

Yet activists and lawmakers say the death penalty is deeply flawed, and they support a host of bills that would protect defendants from being sentenced to death on the basis of race or for crimes they committed while suffering from a serious mental disability.

"We've been asking for a moratorium for years, and the purpose of that was to reform some serious problems with the death penalty. We have the opportunity to do that right now," Mark Kleinschmidt, executive director of Fair Trial Initiative, said in an interview.

Moving through the N.C. General Assembly, with varying degrees of success, are several bills that would address issues of fairness in capital punishment (see box). The Racial Justice Act, which is headed to the House floor, would prevent the execution of inmates who can prove they were sentenced to death based on race.

Stam said the bill would make it "impossible to do the death penalty, because it requires county-by-county and district-by-district quotas."

Rather than establish quotas, however, the bill would place the burden of proof on defendants to show that race was an underlying factor at the time of their trial in the county, district or state where they were sentenced to death.

Rep. Paul Luebke, D-Durham, one of the bill's sponsors, said in an interview that the proposed reforms represent "important steps in making the death penalty a fair remedy."

"I would support the passage of those bills before any rush to resume executions," he said.

North Carolina has not executed an inmate since August 2006, after the N.C. Medical Board barred its doctors from being "present" for lethal injections—a requirement of the execution protocol approved in 2007 by the Council of State. The N.C. Department of Correction, which developed the protocol, sued the medical board to strike down the rule; earlier this month, the N.C. Supreme Court ruled in the correction department's favor, 4-3.

However, executions cannot resume until at least one other legal challenge to the protocol is resolved. In 2007, the Office of Administrative Hearings (OAH) ordered the Council of State to reconsider its approval of the protocol, which it did in a single meeting closed to public comment—a violation of state administrative code.

The Council of State swiftly rejected the court order, claiming the OAH lacked the jurisdiction to scrutinize its actions. Wake County Superior Court Judge Donald Stephens will now hear an appeal to the Council of State's decision, filed on behalf of five death-row inmates. Until then, executions cannot proceed.

Once that case is resolved, Stam argued, executions should continue without legislative interference. He insisted that death-row inmates receive sufficient protections; as evidence, he pointed to cases that ended in wrongful convictions, years after the death sentence was imposed.

"There's a systemic problem with all human institutions finding guilt or innocence, and we do a pretty good job of sorting those out in the end—and those have been sorted out," he said.

In the last two years, three North Carolina death row inmates have been released after serving a combined 35 years in prison for crimes of which they were not guilty. Nationwide, more than 130 death row inmates have been exonerated for wrongful or erroneous convictions since 1973, including eight in North Carolina.

In 2006, the N.C. General Assembly established the Innocence Inquiry Commission to address critical flaws in the post-conviction appeal process. This year, the House passed a bill that would grant the commission power to subpoena any witness, and protect witnesses from prosecution from perjury if they acknowledge they initially lied in court.

But the lengthy, and costly, burden of proving the innocence of death-row inmates before they're executed for crimes they did not commit—a process that has led states like Illinois to declare death-penalty moratoriums—is just one part of the problem, according to Kleinschmidt.

"It's not always about innocence," he said. "The courts have told us, and I think people of our state would agree, that not every murder is one worthy of execution. Many of these cases occur in the presence of severe mental illnesses, of limited intellectual abilities, and in extremely inflamed emotional situations."

Race can also determine whether a defendant who is guilty spends life in prison or is sentenced to death. The American Bar Association, which has recommended temporary moratoriums until states can resolve widespread inconsistencies in death penalty cases, states on its Web site that "Racial and ethnic bias infects the decisions as to who gets prosecuted and who gets sentenced to death."

Amnesty International has found that 79 percent of homicide cases resulting in a death penalty involved a white victim, though half of all homicide victims in the United States are black. And a 2001 study conducted by two University of North Carolina professors, which analyzed cases over a four-year period in the 1990s, found the odds of receiving a death sentence in North Carolina grew 3.5 times in cases where the victim was white. That study, published by the Common Sense Foundation, found that black defendants in the state were also twice as likely to receive a death sentence, when comparing identical crimes. Of the 206 defendants who are on death row or have been executed in North Carolina since 1977, 100—or 49 percent—are black, although the state has had an African-American population of roughly 22 percent over the past three decades.

Stam chalked up any disparities in sentencing to modern-day segregation and posited that a higher rate of death sentences for black-on-white murders simply meant it was probably a "stranger murder."

"Juries are less likely to give the death penalty if you know somebody," he said.

Instead, Stam said the real injustices are murders that happened because the moratorium reduced the deterrent effect on killing—a controversial claim among criminologists and social scientists.

As evidence, he pointed to a University of Houston study that claims to be able to calculate the number of likely murders that occurred as a direct result of Texas' temporary moratorium—90—and prorated it for North Carolina's population and the comparative length of its ongoing moratorium. Stam said that method predicts 75 N.C. murders.

However, multiple other studies have shown no correlation between a death penalty and a deterrent to homicide. According to FBI statistics over the past 20 years, states without a death penalty have had consistently lower murder rates than states that do—although this data does not necessarily prove or disprove any correlation.

Aside from clearly premeditated murders, Kleinschmidt said, other murders occur in heights of passion—or in the throes of mental illness—in which contemplating the N.C. Medical Board's resolution on the execution protocol, for example, is not the first thing that comes to mind.

"We're talking about murders that are occurring in an environment in which there is very little reflection on what the consequences of their behavior are going to be," he said.

As executions in North Carolina inch closer to reality, legislators have struggled to enact reforms that would—seemingly—appeal to death-row opponents and advocates alike.

Sen. Ellie Kinnaird, D-Orange, who introduced the mental-health bill, said in an interview that legislators from both parties are afraid of appearing too "liberal" in voting for the bills as they approach the crossover deadline this week.

"I'm going to have a hard time trying to convince my fellow legislators that this is the right thing to do," she said of her bill, which she characterized as being "last in line."